Category: Ethical Commentary

Submission to the College of Physicians and Surgeons of Ontario

Re: Professional Obligations and Human Rights

Ontario Medical Association

The Ontario Medical Association is grateful for the opportunity to provide comments on the College’s draft policy Professional Obligations and Human Rights. The OMA undertook a broad member consultation to gather views on the draft policy. The OMA Board deliberated extensively on the draft policy and the implications it could have for physicians’ freedom of conscience. This Association struggles with endorsing the draft policy which, although progressive in its efforts to ensure patient access, forces physicians to take actions that may conflict with their fundamental beliefs. We disagree that enforcing a single, strict ‘rule’ governing physician behaviour when it comes to an issue as personal as moral or religious beliefs is feasible. We suggest that the College withdraw the current draft and undertake further study, particularly given the direct comment on point in the recent Supreme Court decision in Carter v. Canada.

Both patients and physicians are protected under the Ontario Human Rights Code as well as the Canadian Charter of Rights and Freedoms. That being the case, it is imperative that the policy does not undermine a physician’s right to freedom of conscience. Furthermore, the decision emphasized the need to reconcile patient and physician protections. The draft policy has not reconciled these protections since an “effective referral” (an affirmative action that contributes to the outcome) cannot be said to address the physician’s right to freedom of conscience. This recent Supreme Court decision provides further evidence that the policy must have flexibility in terms of the options available to physicians who are unable to provide services because of moral or religious beliefs.

We propose that this policy not focus on forcing physicians to perform services to which they object. Instead, the policy should focus on improving information about and access to alternative options. The OMA believes that in circumstances where the physician is unable to personally provide medical services, he or she must not impede the patient in accessing those services elsewhere. The issue of access when it comes to contentions medical services is a complex one that will require stakeholder collaboration to develop a more nuanced approach “Effective referral” represents only one tool – a fairly blunt one at that – we can use to resolve these conflicts. The policy should contemplate intermediate options. For example, the College might allow physicians to post general information about their scope of practice in a visible place for all patients. Another option would be for the policy to allow physicians to make generic referrals to third party organizations or agencies that maintain information about service providers. Incorporating any of these approaches would require further discussion.

We understand that the goal of this policy is to protect patient dignity and ensure patients can access the medical services they seek and we support that aim. However, we believe the College will have more success in achieving its goal if physicians are not forced to comply with a rigid process that may present serious moral dilemmas and diminish their dignity. In reassessing this draft policy, we urge the CPSO to consider the fact that physicians are also protected under the Code and that the College will be obliged to consider the Code when determining whether physicians’ conduct is consistent with the College’s expectations.

Thank you for considering these comments.

Moral Reflections on Vaccines Prepared from Cells Derived from Aborted Human Foetuses

Pontifical Academy for Life; Congregation for the Doctrine of the Faith

PONTIFICIA ACADEMIA PRO VITA

Il Presidente
Prot.n.P/3431

Vatican City,
June 9 2005

Mrs Debra L.Vinnedge
Executive Director, Children of God for Life
943 Deville Drive East
Largo, Florida
33771
Stati Uniti

Dear Mrs Debra L.Vinnedge,

On June 4, 2003, you wrote to His Eminence Cardinal Joseph Ratzinger, with a copy of this letter forwarded to me, asking to the Sacred Congregation of the Doctrine of Faith a clarification about the liceity of vaccinating children with vaccines prepared using cell lines derived from aborted human fetuses.  Your question regarded in particular the right of the parents of these children to oppose such a vaccination when made at school, mandated by law. As there were no formal guidelines by the magisterium concerning that topic, you said that catholic parents were often challenged by State Courts, Health Officials and School Administrators when they filled religious exemptions for their children to this type of vaccination

This Pontifical Academy for Life, carrying out the commission entrusted to us by the Congregation for the Doctrine of Faith, in answer to your request, has proceeded to a careful examination of the question of these “tainted” vaccines, and has produced as a result a study (in Italian) that has been realized with the help of a group of experts. This study has been approved as such by the Congregation and we send you, there enclosed, an English translation of a synthesis of this study. This synthesis can be brought to the knowledge of the interested officials and organisms.

A documented paper on the topic will be published in the journal “Medicina e Morale”, edited by the Centra di Bioetica della Universita Cattolica in Rome.

The study, its synthesis, and the translation of this material took some time. We apologize for the delay.

With my best regards,

Sincerely yours,
+E.Sgreccia

 00193 Roma – Via della Conciliazione, 1 – Tel. 06 698.82423 – 06 698.81693 – Fax 06 698.82014

See Moral Reflections on Vaccines Prepared from Cells Derived from Aborted Human Foetuses 

Submission to the College of Physicians and Surgeons of Ontario

Re: Professional Obligations and Human Rights

Christian Medical & Dental Society, Canadian Federation of Catholic Physician Societies

The Christian Medical and Dental Society of Canada (“CMDS”) and the Canadian Federation of Catholic Physician Societies (“CFCPS”) welcome this opportunity to provide feedback to the College of Physicians and Surgeons of Ontario (“CPSO”) on the draft policy “Professional Obligations and Human Rights”. Together our organizations represent 1800 physicians, all of whom are seriously concerned about the implications of the policy and their ability to continue to practice medicine should the policy be passed.

Freedom of conscience

Freedom of conscience is protected under the Canadian Charter of Rights and Freedoms. As a creature of provincial statute, the CPSO is bound by the Charter, and must respect it. Yet this draft policy requires physicians to refer for, and in some cases carry out services that are contrary to their conscience. (Lines 156-168)

Conscience rights were recently reasserted by the Supreme Court of Canada in the Carter case. The Court confirmed that “a physician’s decision to participate in assisted dying is a matter of conscience” (para 132). The Court favourably cited the factum of the CMDS and CFCPS who had reproduced the comments of Justice Beetz in Morgentaler (para 132), who stated that a physician could not be compelled to participate in abortion. These comments are directly applicable to the draft policy and we urge the CPSO to revise the draft in light of the Supreme Court’s decision.

The reasoning of the Carter case can also be used to determine whether s.1 of the Charter can be used to limit doctors’ freedom of conscience. The Carter case made clear that in the absence of evidence that patients are being denied a Charter right, the Court will determine that it is not necessary to force physicians to refer patients or perform procedures in violation of the physician’s Charter right to freedom of conscience and religion. It is noteworthy as well, that the Charter does not apply to physicians, but rather, protects them. Under the principles in Carter physicians who object to engaging in certain procedures or pharmaceuticals, including through referrals, will be successful if they can show that there is a regulatory system that ensures access to procedures like abortion and euthanasia without incorporating the conscientiously objecting physician into the process of referral. This test is already met, because in Ontario patients can access abortion through self- referral. There is no reason to insist that a conscientiously objecting physician refer for abortion when the patient already can self refer.

Furthermore, it is not the CPSO’s role to ensure access to abortions. Even if it were, there would be an onus on the CPSO to prove that it cannot ensure access to abortions without infringing on the Charter rights of individual physicians (para. 118). A theoretical or speculative fear cannot justify an infringement (para. 119).

There is no human right in Canada to demand and receive particular services from a specific physician. Provincial human rights legislation prohibits discrimination against the public on a number of grounds that include among others, race, ethnicity, sex, religion, sexual orientation, age or disability. Human rights legislation does not dictate what services must be delivered. So, if a restaurant chooses not to serve pork because of the owner’s religious beliefs, there is no violation. If the restaurant chooses to exclude people of a particular ethnic group, however, that would amount to discrimination and a violation of provincial human rights legislation. In the same way, a physician who is unable to participate in a procedure or prescribe a pharmaceutical product for moral or religious reasons is not discriminating against his or her patient provided all patients are treated the same. Unfortunately, this draft policy suggests that a physician’s objection to a specific procedure or pharmaceutical may be a violation of a patient’s rights under the Charter or the Code. This reference makes clear that those who prepared this policy misunderstand the application and function of Ontario and Canadian law.

Provided the services are delivered in a respectful way, there are no competing rights. In such a case, the only human rights present are the physician’s human rights to freedom of religion and freedom of conscience. Furthermore, when the physician is an employee they have the additional right to be accommodated by their employer. [Full text]

Physician-assisted suicide is a non-issue for most MDs

CanadianHealthcareNetwork.ca

Dr. Shawn Whatley

For most doctors, physician-assisted suicide will not change almost anything in day-to-day practice. It will happen away from the mainstream of care, available but not obvious. Doctors will want reassurance that neither patients nor caregivers get coerced but beyond that, most physicians will not get passionate either way.

Doctors usually avoid social activism. As a group, they support social movements but rarely create movements of their own.

Doctors agree on one moral absolute: Thou shalt not express a moral opinion about the behaviours, beliefs or decisions of thy patient. Everyone is a potential patient. Ergo, doctors should not express opinions about anyone’s choice. Society expects this—demands this—of its doctors. Modern medical trainees learn objectivity before all else. . . [Full Text]

 

Submission to the College of Physicians and Surgeons of Ontario

Re: Professional Obligations and Human Rights

Catholic Civil Rights League

The Catholic Civil Rights League (CCRL) is pleased to provide this submission to the College of Physicians and Surgeons of Ontario (CPSO) regarding the revised and approved draft policy Professional Obligations and Human Rights. We strongly advocate for a robust understanding and protection of the Charter right of freedom of conscience and religion for all Canadians, and indeed physicians in the daily routine of their care to patients and in the overall forming of their individual medical practices. The CCRL therefore rejects the proposed mandate for an “effective referral” as it is a breach of a physician’s rights and a serious incursion into the professional standing of a physician.

We previously provided a submission in August of 2014, when external consultation was sought regarding proposed changes to Physicians and the Ontario Human Rights Code. In 2008, we raised similar concerns in that consultative process. We are as adamant with our concerns today as we were seven years ago. Doctors and other health care professionals, indeed all Canadians, enjoy the Charter right of freedom of conscience and religion. A proper balancing of the rights of physicians with the concept of patient autonomy must not result in the trumping of the rights of physicians in their medical practices. Such rights extend not only to refusing to perform morally objectionable services, but the right not to be obliged to refer to other practitioners who may be willing to provide such services. This clearly would constitute participation in wrong. The proposed mandate for an “effective referral” must be rejected.
Lines 156-159 are wholly unacceptable to the CCRL:

Where physicians are unwilling to provide certain elements of care due to their moral or religious beliefs, an effective referral to another health care provider must be provided to the patient. An effective referral means a referral made in good faith, to a non-objecting, available, and accessible physician or other health-care provider.

The CCRL appeals to the Executive Committee and Council to strike from this policy the necessity to “provide an effective referral”. This is an unacceptable inclusion, an unnecessary and unwanted change from the 2008 policy. Compelling a physician to provide an effective referral to another physician or health-care provider in order to carry out a procedure to which he or she objects on the grounds of conscience or religion also compels the physician to violate his or her own conscience by being a participant in the very act, the very procedure to which he or she objects in the first place.

The current CPSO policy also states that:

The balancing of rights must be done in context. In relation to freedom of religion specifically, courts will consider how directly the act in question interferes with a core religious belief. Courts will seek to determine whether the act interferes with the religious belief in a ‘manner that is more than trivial or insubstantial.’ The less direct the impact on a religious belief, the less likely courts are to find that freedom of religion is infringed.

The CCRL submits that issues pertaining to the sanctity of life from conception until natural death is a core Catholic belief. There is also a growing body of medical research which has questioned in recent years the merits of artificial birth control, and the further risks to women from abortion. A Catholic physician is entitled in conscience to avoid providing artificial contraception or abortifacients, or procuring an abortion unless the mother’s life is in imminent threat. In the event that Canada adopts a regime of physician assisted suicide, the threat to conscientious objection is that much greater. We assure the CPSO that under no circumstances would any of the aforementioned practices be considered ‘trivial or insubstantial’.

The CCRL further submits that there are numerous procedures which may violate good medicine, or violate the consciences of many other physicians belonging to other religions or those holding sincere beliefs, religious or otherwise. The point is that despite our mandate to educate the public and defend and promote the Catholic perspective, we at the CCRL nonetheless submit that a physician must have the right to carry out their duties in line with their consciences, period.

Neither the College nor the courts determine what comprises religious belief and to what extent acts may or may not interfere. Once the sincerity of religious belief is understood, neither the College or courts should interfere in a delineation of what the particular faith may prescribe. It is far more logical to simply respect physicians’ consciences as has been the case in Ontario with the policy in place since 2008. The compulsion to effectively refer violates this right of freedom of conscience and religion and there is no reason to institute the need to provide an effective referral, whether it is on the grounds of access to care, or on any other grounds.

Regarding the ‘balancing of rights’ referred to by the CPSO, the CCRL believes that the current status quo in Ontario maintains this balance between the Charter rights of conscience and religion with the concept of patient autonomy. Using the previous listed examples of practices that would be morally objectionable to a serious Catholic physician, consider that the number of said physicians is minute in comparison to those who would have no objection whatsoever. If a lack of balance exists, it is surely found in the vast difference between physicians who choose to conscientiously dissent versus those who do not. This difference is so great that it cannot be objectively stated that a member of the public in Ontario would have their rights to autonomy violated by any physician following the 2008 CPSO policy.

With this submission, we at the CCRL call upon the CPSO’s Executive Committee and Council to reject the mandate for “effective referrals”. The medical profession, as with any grouping of individuals is not truly free to live and free to grow if its members are not able to govern their actions in accordance with their individual consciences, whether informed by moral and religious beliefs or otherwise.

Canada is a pluralist society, and an authentic pluralism recognizes that there will be differences in the public sphere, and that we live with such differences in a civil society. The proposed CPSO policy engages in a trumping exercise, mandating that a patient’s autonomy trumps recognized conscientious and religious rights of physicians. The demand for acceptance of a regime of “effective referral” of morally objectionable practices would lead to patients losing trust in the professional status of doctors. There is also the likelihood of numerous physicians opposing the new proposed policy and their refusal to comply, generating unwarranted complaints and possible exits from the jurisdiction. The extent of potential disruption is unknown, but greater instability would certainly follow in the provision of medical services. Ontario can ill afford such a tearing of the social fabric of our society. The better alternative is to accept that we are respectful of differences, especially when they concern aspects of one’s moral or religious beliefs, in no way trivial, but rather as the basis of a well-developed civil society.